MZWMT v Minister for Immigration
[2005] FMCA 826
•6 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWMT v MINISTER FOR IMMIGRATION | [2005] FMCA 826 |
| MIGRATION – Review of decision of the Refugee Review Tribunal – application summarily dismissed. |
| Applicant M100/2003 v Minister for Immigration [2004] FMCA 157 NAKX v Minister for Immigration (2003) FCA 1559 NALM v Minister for Immigration (2004) FCAFC 17 |
| Applicant: | MZWMT |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 783 of 2004 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 6 April 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 6 April 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Ms J.K. Macdonnell |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The applicant’s application for an adjournment is refused.
The application filed 17 June 2004 be dismissed.
The applicant be restrained from bringing a further application to review the decision of the Refugee Review Tribunal dated 23 February 1998 except by leave of the Court.
The applicant pay the respondent’s costs fixed in the amount of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 783 of 2004
| MZWMT |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application to dismiss summarily an application of MZWMT for judicial review of a decision of the Refugee Review Tribunal. The matter has previously been the subject of careful consideration by McInnis FM in proceedings Applicant M100/2003 v Minister for Immigration [2004] FMCA 157. His Honour clearly gave this matter careful consideration, given that the decision runs for some 13 pages. The matter was then the subject of an appeal application to Crennan J of the Federal Court on 28 May 2004 which was refused, and reasons for judgment are reported at (2004) FCA 688.
There is some argument as to whether or not the refusal of his Honour to grant an order nisi amounts to a final determination or an interlocutory determination. If it be final, then clearly this matter is the subject of an estoppel and ought to be dismissed on that basis. However, it is not an estoppel in the sense as usually identified.
It appears clear to me that it amounts to an abuse of process that is an attempt to have a different court again determine substantially the same issues that were determined by McInnis FM and which were not disturbed on appeal. Such an application is clearly inappropriate.
I must determine whether I should grant an adjournment of this application based upon the medical evidence of Dr Novani who stated:
This is to state that [the applicant] has a history of Anxiety and Major Depression.
Recently his Generalized Anxiety state has deteriorated with symptoms of Sleeplessness, Headaches, Irritability and poor Concentration.
Currently due to his mental state he is unable to attend court.
In my opinion, it would be advisable to defer the court hearing for at least a month or so.
The question of adjournments on such brief medical certificates has been considered in two decisions, NAKX v Minister for Immigration (2003) FCA 1559 and NALM v Minister for Immigration (2004) FCAFC 17. The first decision was a first instance judgment of Lindgren J on 17 December 2003. His Honour discussed a similar issue at paragraphs 5 to 11 of his judgment in the following terms:
5. The medical certificate dated 13 December 2003 in respect of the male applicant states as follows:
‘This is to certify that on 13/12/2003 I examined the above person. In my opinion he/she is suffering from Dermatitis atopic and will be unable to attend court from 13/12/2003 to 01/01/2004 inclusive.’
The certificate of the same date in respect of the female appellant states:
‘This is to certify that on 13/12/2003 I examined the above named person. In my opinion he/she is suffering from Anxiety disorder/Depression and will be unable to attend court from 13/12/2003 to 13/01/2004 inclusive.’
6. The medical certificates are quite unsatisfactory. They do not address the critical question whether, and if so why, the medical condition would prevent the appellant from travelling to the Court and participating effectively in a court hearing.
7. I do not accept that either of the medical conditions referred to would make the sufferer ‘unable to attend court’ – apparently each was able to attend upon the medical practitioner.
8. If the certificates were meant to say that the medical condition would prevent the sufferer from participating effectively in a court hearing, they do not in fact say that and do not explain why the medical condition would have that effect.
9. I take into account the fact that the two medical certificates are structured identically, use the expression ‘he/she’, and are dated the same day, which was only two days before the hearing. The certificates have the appearance of being pro forma certificates which are available for the asking.
10. In any event, even accepting the certificates on their face, I find them unpersuasive for the reasons given at [6]–[8] above.
11. I refuse the application for an adjournment.
The issue was also discussed in the Full Court in the latter decision in the following terms:
22.This morning, the appellant faxed to the Court a letter which, omitting formal parts, was as follows:
‘I [NALM] No N1711 of 2003, am very sick/ill and while thanking for early adjournment on 10th I am afraid I would not be able to attend the court on 12th 2.30 pm, and I would like to request you to kindly consider my situation and postpone the (adjournment) hearing for some time.
I should be in the court while hearing because to explain and give details to your honour.
I am annexing herewith a medical certificate as well.’
The material parts of the medical certificate were as follows:
‘Western Sydney HEALTH
Area Health Service
Sickness Certificate
To whom it may concern
This is to certify that I examined [NALM]
Medical Record No 421779 as an outpatient on 12/02/04
I consider the patient likely to be able to resume normal occupational duties on 13/02/04.
I consider the patient will require further assessment on 13/02/04 by LMO
With the patient’s consent the diagnosis is medical condition.
Doctor’s signature [signed] Date 12/02/04
Doctor’s name (print) W. Chan’
23. The Minister opposes the application for an adjournment.
24. The medical certificate does not identify the ‘medical condition’ or explain why it would prevent the appellant from participating effectively in a hearing of his appeal today. As noted below, he has provided written submissions.
25. In all the circumstances, we are not persuaded that a further adjournment should be granted.
I am not persuaded that it is appropriate to grant an adjournment in this case on the basis of this medical certificate. This decision is made easier by the evidence of Mr Carroll who advised that on 31 March 2004, in his evidence, that he had a telephone conversation with the applicant who was requesting an adjournment. He stated that he advised the applicant that an adjournment would not be agreed and that the applicant told him that he may withdraw as he was not ready. He advised the applicant that 90 per cent of the costs had been incurred in any event and he advised the applicant that he would have to convince the judge of the need for an adjournment. Clearly, the reference to a judge was intended to refer to the judicial officer and when dealing with someone whose English may not be the best, it is certainly more than appropriate for a solicitor to use term "judge" in its generic sense so as to make themselves easily understood. I have little doubt that the applicant would have understood the thrust of what Mr Carroll said, which was to the effect that he would have to convince me of the need for an adjournment.
In these circumstances I am satisfied that the matter should proceed in the applicant's absence and that the application ought to be dismissed. I am also satisfied, given the conduct of the matter, that an order should be made restraining the applicant from bringing further applications without first obtaining the leave of the court and therefore make orders in those terms.
The applicant today, who is the respondent in the substantive application, seeks costs in the sum of $5,000.00. Having regard to the nature of the matter and the scale, I am satisfied that costs ought to follow the event and that $5,000.00 is a reasonable sum. I therefore order costs in the sum of $5,000.00 paid by the applicant MZWMT to the minister.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Associate: Peter Smith
Date: 16 June 2005
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